Edward O'Donnell and Patrick O'Donnell
(Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, April 17,
18, 19, 20, 21; May 26 and August 16, 1972.
Aeronautics—Crown—Negligence—Suspension of air-
craft's certificate of airworthiness for lack of evidence of
approval for aileron gap strips—Gap strips removed—Plane
subsequently crashes—Whether negligence by aircraft
inspector.
In March 1969 E purchased a J3 Piper Cub aircraft which
had belonged to two previous owners since it was brought
into Canada in 1959. The plane had been equipped by its
U.S. manufacturer with aileron gap strips: these affected its
climbing characteristics. Long before E bought the plane
the original strips had been replaced by a prior owner with
tapes which had been home-made, but no mention of this
was made in the plane's log book. In November 1969 the
plane was inspected by a Department of Transport inspec
tor pursuant to the Air Regulations. The inspector suspend
ed the plane's airworthiness certificate under section 22 of
the Regulations for a number of irregularities, including lack
of evidence to indicate approval for aileron gap strips. E
employed an aircraft repair company to remedy the
irregularities, and the aileron gap strips were removed. E
then flew the plane several times and in August 1970 it
crashed with resultant injury to E and his infant son, who
brought action for damages alleging that the aircraft inspec
tor was negligent in requiring the aileron gap strips to be
removed.
Held, dismissing the action, the aircraft inspector was
justified in the circumstances in requiring evidence of
approval for aileron gap strips and the onus of providing
such evidence was on the owner of the aircraft. Moreover,
even if it was the Department's duty to provide such evi
dence, it was not breach of that duty but rather the flying of
the aircraft that caused the accident.
ACTION for damages.
Keith Eaton for plaintiffs.
Sol Froomkin for defendant.
CATTANACH J.—By this action, the adult
plaintiff, Edward O'Donnell, on his own behalf,
and as next friend to his thirteen year old son,
the infant plaintiff, Patrick O'Donnell, seeks to
recover damages for the loss of an aircraft by
crashing at Webster Lake, Ontario and for inju
ries sustained during that crash by each of the
plaintiffs from Her Majesty the Queen on the
ground that servants of Her Majesty as a condi
tion of reinstatement of a certificate of airwor-
thiness with respect to the aircraft in question
negligently required the plaintiff, Edward
O'Donnell to remove gap strips covering an
aperture between the wing surface and the ailer
on on each wing of the aircraft. From this point
forward when reference is made to the plaintiff,
that reference will be to Edward O'Donnell.
The plaintiff, who is forty-three years of age,
lives at Perry Lake, Ontario where he has ope
rated a hunting lodge for approximately ten
years. His postal address is Matheson, Ontario
where he has further employment as a school
teacher. The plaintiff described the hunting
lodge operation as a small one but it did absorb
all the money that he was able to accumulate to
bring it to the point that he could swear that it
was the number one bear hunting camp in
Canada. The customers are mostly residents of
the United States. The guests stay at the lodge
from where they go to a camp site set up in an
even more remote area to hunt bear. While bear
hunting appears to be the primary objective of
the lodge, hunting is also conducted for moose.
The plaintiff could not provide his guests
with "top notch" moose hunting without the use
of an aircraft. The areas accessible by four-
wheel drive trucks attract too many hunters. An
aircraft is essential to get to the more isolated
areas abundant in wildlife and where the hunter
is almost assured of a trophy.
In 1965, the plaintiff took flying instruction
at Georgian Bay Airways, South Porcupine,
Ontario and qualified for his private licence
after 30 to 45 hours. My recollection is that
immediately following his qualification, the
plaintiff bought a "Chipmunk" aircraft on
which he flew approximately 100 hours before
disposing of it. He has since logged a further
100 flying hours.
On March 1, 1969 the plaintiff bought a Piper
Cub aircraft equipped with skis and floats from
Vic Parenteau of Val -d'Or, Quebec for $3,990
inclusive of sales tax. This was a light two
seated aircraft powered by a 65 h.p. Continental
motor and had been manufactured by Piper
Aircraft Corporation, Lockhaven, Pennsylvania
in 1938 or before. It is described as model J3,
Canadian registration designation CF-KDE and
the manufacturer's serial number is 2499.
The owner, prior to Vic Parenteau, had been
Ross McDuff who had traded the aircraft to Mr.
Parenteau for a larger aircraft in October 1968
and received an allowance of $4,000 for it. Mr.
McDuff had purchased the aircraft from Martin
Wolfe in 1965 for about $2,500. Martin Wolfe
had acquired the aircraft on September 24,
1959 for $2,500.
Log books are in existence for the aircraft
from 1957 forward. Before Mr. Wolfe, the
chain of ownership is obscure. Conjecture is
that the aircraft was imported into Canada by a
flying club at Sault Ste. Marie presumably in
1957. The aircraft had been manufactured in
the United States by Piper Aircraft Corporation
in 1938 and in all likelihood was operated there
during the period prior to its importation into
Canada.
The predecessor of Piper Aircraft Corpora
tion had been the Taylor Aircraft which had
manufactured the Taylor Cub, the progenitor of
the Piper Cub. As I have said, the Cub is a light
aircraft, relatively inexpensive and it is compa
rable to the model T Ford in the automobile
field. It has received wide acceptance among
aviation enthusiasts as a reliable, inexpensive
first aircraft.
This particular aircraft owned by the plaintiff
had been manufactured with a non-friese type
wing assembly as had its preceding model, the
J2. However, not all J3 models had been
equipped with non-friese ailerons. Non-friese
ailerons were installed on aircraft from serial
numbers 1999 to 2624 excepting certain speci
fied serial numbers which had friese ailerons
which do not include serial number 2499, the
plaintiff's aircraft.
There is no doubt whatsoever that when this
particular aircraft, Piper Cub J3, CF-KDE came
off the manufacturer's assembly line it was
equipped with non-friese ailerons and, that ail
eron gap strips were installed on it.
There are three basic movements of an aero
plane, pitching, rolling and yawing, and these
movements are governed by the three control
ling surfaces, the elevators, ailerons and rudder.
The elevators cause pitching, the ailerons roll
ing and the rudders yawing.
The Piper Cub is equipped with a central
column. It is called the "stick". When the stick
is moved backwards or forwards, it moves the
elevators and when it is moved sideways it
moves the ailerons. The rudder is moved by the
rudder bar.
Both lateral level and direction are main
tained by the ailerons (supplemented by enough
rudder to prevent slip or skid).
Mr. Karl Weinstein, an extremely well quali
fied expert witness called on behalf of the plain
tiff, defined the distinction between the friese
and non-friese wing configuration with great
clarity.
With the non-friese aileron (which I might say
is an older type aileron and has been replaced
by the friese or slotted type) the forward edge
presents a flat slab side. Similarly, the trailing
edge of the main plane into which the aileron is
fitted is also a flat surface. The hinge lies on the
top surface. When the aileron is moved to an up
position the gap between the upper surfaces of
the main plane and the aileron remains constant
but on the lower surfaces the gap is increased.
This gap acts like a funnel pointed slightly for
ward. The result is that there is a heavy air flow
through the gap which instead of conforming to
the air flow over the upper surface of the ailer
on as it does in the friese or slotted type, flows
straight up like a jet and disrupts the air flow
over the top surface of the wing.
In addition, when the ailerons are deflected,
one up and one down, the flat surface of the
forward face of the up aileron is subjected to
the force of the air flow which keeps the aileron
in the up position.
In a well designed aircraft, and by that I mean
particularly an aircraft with a friese wing
assembly, the air flow over the surfaces of a
properly trimmed aircraft tends to return the
controlling surfaces to normal and to straight
and level flight. That is what is known as flying
the aircraft hands off.
However, in an aircraft with the non-friese
aileron, as has been indicated above, the aileron
tends to remain up and considerable exertion is
required to be placed upon the stick to return to
the neutral or central position.
It is essential to maintain aileron control of
the movement of the aircraft regardless of the
angle of attack to maintain a smooth air flow
over the main plane and aileron surfaces to
prevent a stall and consequent spin.
A well designed aircraft ensures that, when
an aircraft approaches a stall or is in a stall, that
the portion of the wing nearest the fuselage
stalls first. In this way control is maintained at
the wing tips. However, lift is lost and the nose
will drop. Speed is increased, the air flow
returns to a normal smooth flow and the aircraft
comes out of the stall.
However, if the tip of the wing stalls first,
then because the aileron is in the stalled portion
of the wing, aileron control is lost. Without
aileron control, the aircraft cannot be returned
to the level attitude. The stalled wing will con
tinue to drop and the aircraft will flip into a
spin. Once into a spin, recovery is difficult and
depending upon the height of the aircraft above
ground level, might not be possible before a
crash occurs. Full opposite rudder is applied to
stop the rotation of the aircraft. When the rota
tion has stopped the stick is eased back to bring
the aircraft out of its dive.
In the friese aileron the forward surface is
rounded, just as the leading edge of the main
plane is rounded. In effect, the aileron is like a
second wing. The air flow through the gap is
capitalized upon so that the air flow over the
aileron remains smooth even though the air
flow over the wing surface forward of the ailer
on may have separated. Thus there still remains
effective aileron control in the stall position or
close to the stall position and recovery can be
effected. As has been pointed out before this is
not so with the non-friese type.
The foregoing remarks are an enunciation of
the well-known principles in the theory of
flight.
The function of the aileron gap strip on the
non-friese type wing assembly is to prevent the
air flow through the gap between the wing and
the aileron from the high pressure from the
below surface to the low pressure area of the
upper surface thereby preventing the jet-like
force of the air coming through the gap and
interfering with the smooth flow of air over the
upper surface of the aileron. A second function
is performed by the aileron gap strip in addition
to preventing the passage of air. It is that stag
nant air is built up in the space between the
trailing surface of the wing and the leading flat
surface of the aileron so that there is no longer
the force on the forward surface of the aileron
which keeps the aileron in the up position and
consequently requiring greater force on the
stick to return to a neutral position.
The aileron gap strip is nothing more than a
strip of flexible fabric about four inches wide
which is glued over the gap between the wing
and the aileron along the entire upper surface. It
is nothing more than a seal. I cannot refrain
from saying that it is remarkable -that such an
unremarkably simple thing as -an aileron gap
strip has such a remarkable effect on the flying
characteristics of an aircraft but it is manifestly
so.
At this point I might mention that I do not
think the question whether the absence of the
gap strip might have the effect of lowering the
stalling speed has any material bearing on the
issue which I shall be required to decide. In my
view, the most material effect of the removal of
gap strips from an aircraft with non-friese ailer
ons is the behaviour of the aircraft in an atti
tude other than with wings level and the facility
with which the aircraft can be brought back to a
level attitude.
At this point I should also mention that I do
not think that whether the throttle is opened or
closed has a marked effect on aileron control.
The extra slip stream from a faster rotating
propeller will give more effective control of the
elevator and rudder controls because of the
increased air flow over these surfaces just as
the increased slip stream over the wing surfaces
will give the aircraft more lift and thereby the
stalling speed becomes lower and the extra
thrust will be inclined upwards. But the ailerons
are beyond the influence of the slip stream.
Furthermore, I am satisfied that when the
aileron gap strip is removed there will be an
adverse effect on the rate of climb of the air
craft. This had been my impression and it is
confirmed by the Piper Aircraft Corporation's
Bulletin No. 3 dated 2-15-46 (Exhibit D-2).
In that bulletin, it is explained that a nose
heavy condition is caused by the disturbance in
the air flow which results from the absence of
the gap strips affecting the tail surface thereby
depressing the nose. When the gap is covered
the nose heavy condition is relieved and the
aircraft flies normally. The bulletin emphasizes
that the removal of the tape over the gap
between the wing and the aileron greatly inter
feres with the climb of the aircraft and warns
that the gap should be covered at all times. If
the tape is removed for any reason it is empha
sized that it should be replaced.
It is accepted that the aileron gap strips had
been installed by the manufacturer on the air
craft owned by the plaintiff. It is also accepted
that the United States Federal Aviation
Administration had issued an aircraft type cer
tificate applicable to the Piper Cub J3. That
being so, the aircraft conforming to the type is
eligible for a Canadian certificate of airworthi-
ness. It is not disputed that when the aircraft
owned by the plaintiff was imported into
Canada prior to 1959 a Canadian certificate of
airworthiness was granted with respect to that
aircraft with aileron gap strips installed.
Martin Wolfe who had purchased this par
ticular aircraft in 1959 testified that at the time
of the purchase by him aileron strips were affix
ed. While he owned the aircraft he logged 463
hours 23 minutes. He described a flight in 1961
when he heard a loud noise in the starboard
wing. He immediately landed and having
observed that about 8 inches of tape had come
off he removed the remaining tape from the
starboard wing and took off. The aircraft was
subjected to severe buffeting. He therefore
landed and took the tape off the port wing to
secure balance and took off for a 15 minute
flight to his home base. He experienced great
difficulty in that short flight. He had to pull
back with full force with both hands on the
stick to keep the nose up. He managed to get
home without incident. He covered the gap with
ordinary tuck tape and found that the aircraft
performed normally. He ordered fabric tape
from a supplier in Toronto, Ontario and
installed that tape himself. The installation is a
very simple process. It is merely glued on. He
made no entry of this incident in the log book.
The next owner, Ross McDuff, bought the
aircraft in his wife's name in 1965. In 1966 he
had a complete new fabric job done in Oshawa,
Ontario. When the job was done the aircraft
was flown to Kapuskasing by one of the
Oshawa firm's men where Mr. McDuff took
delivery. He had specifically directed the atten
tion of the repairman, presumably an air-frame
mechanic, to the tapes on the top of the wings
and that when the frame was recovered, the gap
should also be covered or inquiries made to find
out the proper thing to do.
When the aircraft was delivered, the aileron
gap strips were not on. Mr. McDuff took the
aircraft up to try it out. He found that it was all
right when flying straight and level but when it
was subjected to wind gusts or turns by use of
ailerons there was a definite tendency for the
aircraft to go out of control. He made his turns
by use of the rudder. The aircraft flew well
enough but it could not be turned properly. He
therefore concluded that no modification had
been made to the wing assembly. He therefore
landed the aircraft on a lake and glued tape over
the gap between the wings and ailerons. He
explained that he always carried tape for this
purpose because of an experience he had when
he first purchased the aircraft. He had the air
craft inspected and any repairs needed done by
an aircraft maintenance engineer. The engineer
removed one gap strip. When Mr. McDuff took
delivery of the aircraft he did not notice that the
gap strip had been removed. The next morning
he was making a 70 mile flight. The aircraft
performed badly right after take off. There was
poor aileron control in the starboard wing. He
suspected a cable was caught and landed to
make an inspection. The cable was in order but
he noticed that the gap strip on the right wing
was missing. He had fabric repair material with
him and he replaced that gap strip. Incidentally,
Mr. McDuff had owned another Piper Cub J3
which had a friese wing assembly and accord
ingly no gap strips.
Therefore, Mr. McDuff installed gap strips on
the, starboard wing twice and on the port wing
once during his ownership. When he sold the
aircraft to Vic Parenteau he pointed out the gap
strips to him and emphasized that they should
be left on.
Mr. McDuff is not himself an aircraft mainte
nance engineer and he did not record that he
had installed and on one occasion that he had
replaced the gap strips.
Every pilot who flew the Piper Cub J3
CF-KDE 2499 remarked upon its superb per
formance, its manoeuvreability, its responsive
ness and its climbing ability. Despite the fact
that it only had a 65 h.p. motor it behaved as
though it had an 85 h.p. motor that is in the
more expensive models.
On November 3, 1969 officers of the Depart
ment of Transport inspected the aircraft owned
by the plaintiff as it lay moored at the plaintiff's
lodge on Perry Lake. The aircraft was on floats
which had been put on by the plaintiff. This
inspection was made in the plaintiff's absence.
On November 4, 1969 the plaintiff received a
telegram (Exhibit P-1) signed by H.W. Finkle,
Regional Superintendent, Air Regulation
Ontario Region, the text of which reads as
follows:
OCAR 527 Certificate of Airworthiness your Piper CF
KILO DELTA ECHO suspended under Section 212 Air
Regulation stop letter Follows.
The letter (Exhibit P-2) also dated November
4, 1969 referred to in the telegram was received
by the plaintiff shortly thereafter.
The letter was written upon the letter head of
the Department of Transport from P.O. Box 7,
Toronto Dominion Centre, Toronto 111,
Ontario and was forwarded to the plaintiff by
registered mail.
The first paragraph reads:
An inspection was carried out on your Piper J3C-65
aircraft, registration CF-KDE at Perry Lake on November
3, 1969 by an Airworthiness Inspector. The following is a
list of discrepancies noted:
There then follows an enumerated list of
twenty-three discrepancies of which item
number 22 is material to this action. It reads:
22. We are unable to find evidence to indicate approval
for aileron gap strips. If no approval has been obtained the
material will have to be removed pending approval for
installation.
The concluding two paragraphs of the letter
read as follows:
The items quoted do not necessarily show all the
irregularities that may be existing in your aircraft as our
inspection constitutes a spot check only.
Please forward a report detailing all defects found and
corrective action taken on the subject aircraft certified by a
qualified Aircraft Maintenance Engineer.
The letter was signed "B. Aston for D.T. Berg,
Regional Airworthiness Inspector."
It is quite apparent from the foregoing that as
a consequence of the twenty-three deficiencies
enumerated in Exhibit P-2 the certificate of
airworthiness respecting the plaintiff's aircraft
was suspended by the Department and would
remain suspended until these deficiencies had
been rectified as well as others found by a
qualified aircraft maintenance engineer.
The plaintiff considered the availability of the
aircraft essential to carry out his moose hunting
operation from remote camp sites although this
would be the first season he would so operate.
Therefore he arranged with an aircraft
maintenance engineer, Bill Bennett, at South
Porcupine, some fifty miles from Perry Lake to
do the work necessary on the aircraft to qualify
it for a renewal of the certificate of airworthi-
ness. 'Mr. Bennett did what work he could at
Perry Lake because he was unable to get a
permit to ferry the plane to South Porcupine.
The engine was dismounted and taken to South
Porcupine. Mr. Bennett took sick during the
winter months. The work progressed more
slowly than was anticipated. Then Mr. Bennett
quit his job at South Porcupine in preference
for one elsewhere. The work on the aircraft was
not completed but sufficient work had been
done to get a ferry permit.
The plaintiff then flew the aircraft to Amos,
Quebec on July 12, 1970 where he had arranged
with Mr. Roland Denomme, who is the Presi
dent of Amos Aviation Limited, a company
engaged in the business of the repair and
maintenance of aircraft, to complete the work
undertaken by Mr. Bennett. There is a flying
school operated in conjunction with that busi
ness as well as charter flying. Mr. Denomme is
a licensed aircraft maintenance engineer and a
qualified pilot holding a commercial ticket.
The plaintiff gave Mr. Denomme a work
sheet (Exhibit D-1) which he had prepared
indicating the work to be done. It was prepared
by him from the letter from the Department of
Transport dated November 4, 1969 and includ
ed all items listed therein which had not been
completed by Mr. Bennett in addition to other
work requested by the plaintiff to be done.
Item number 11 on that work sheet reads
"Remove gap strips on ailerons".
Mr. Denomme acknowledged that he had
read the letter dated November 4, 1969 (Exhibit
P-2) but he was unable to recall whether he read
it when the plaintiff delivered the aircraft to
him on July 12, 1970 or subsequent to the crash
of the aircraft. If it should become material, I
am prepared to find that the letter (Exhibit P-2)
was given to him by the plaintiff along with the
work sheet (Exhibit D-1). The plaintiff swears
that he gave it to him. He had given it to Bill
Bennett when he was working on the aircraft.
Denomme's recollection is vague. The plaintiff
was most anxious that every item listed in
Exhibit P-2 should be corrected to the satisfac
tion of the Department and it is reasonable to
expect that he would have left that letter with
the repairman to ensure that as he had done
with Bennett. I accept the plaintiff's testimony
in this respect.
Mr. Denomme removed the aileron gap strips.
He testified that he did so for a two-fold reason.
First, he checked all books, instructions and
service bulletins from Piper Aircraft Corpora
tion and airworthiness directives to find if there
was any modification of the J3 regarding gap
strips. He found nothing. He checked the log
books. He knew it was a J3 and so he did not
check information on the J2 model. He did not
have the parts manual (Exhibit P-8) which
clearly indicated that 2499 had a non-friese
type wing assembly and required gap strips. He
was not aware that some J3 models were
equipped with non-friese ailerons and others
with the friese type.
I should have thought it would have been
obvious to any experienced aircraft mainte
nance engineer from a casual observation of
KDE 2499 that it was equipped with the non-
friese type aileron. Mr. Denomme knew it
because when the plaintiff complained to him
about stiffness in the aileron control he said it
could be remedied by installing a balanced ailer
on but that it would be a major job. I have
concluded that Mr. Denomme must have had
available to him Exhibit P-2 and I am equally
convinced that the existence of item 22 in that
letter would have an influence upon him. In any
event, he certified the aircraft as being air
worthy with the aileron gap strips removed.
He flew the aircraft for about 40 minutes to
test its reaction and flying characteristics. He
did two take-offs. He did slow flight and stalled
the aircraft. Recovery from a stall was normal.
He only noticed that the aileron control was
very stiff. He had to exert considerable pres
sure on the control column to operate the ailer
ons. That caused him some concern so he had
another pilot fly the aircraft whose reaction was
somewhat the same.
That evening the plaintiff came to pick up the
aircraft. In a telephone conversation Mr.
Denomme had told him there was a stiffness in
the ailerons. He was anxious to have the plain
tiff fly the aircraft to compare its flying charac
teristics with the gap strips on, with which the
plaintiff was familiar, and with the strips
removed.
The plaintiff flew the aircraft for a short time
and he certainly agreed that the ailerons were
stiff. Yet he accepted the aircraft. He did so
because he thought that he could not get a
certificate of airworthiness unless the gap strips
were removed but he did not think it was the
same aircraft. He did say that he would take
delivery of it because he felt that he would have
to accustom himself to the changed aircraft. He
also said that if he did not like it he would put
the gap strips back on himself. It is a matter of
conjecture whether he meant that or said it in a
fit of annoyance.
Mr. Denomme was not prepared to install the
gap strips because his research through the
manuals and the like that he had available did
not disclose any authorization or indication for
the use of aileron gap strips on the J3 model. I
cannot disabuse my mind of the impression that
he was also influenced in this conclusion by the
letter from the Department of Transport.
He was prepared to certify the aircraft as
airworthy without gap strips and he did so.
Based on his certification, the Department
issued the plaintiff a certificate of airworthi-
ness.
The plaintiff flew the aircraft on eight flights
to familiarize himself with the changed flying
characteristics of the aircraft, which flights
totalled 54 hours flying time.
At about 9.30 on the morning of August 17,
1970, a beautiful flying day, the plaintiff,
accompanied by his son Patrick took off from
Perry Lake for McDiarmid Lake. En route the
plaintiff decided to set down on Webster Lake
to check a camp site there.
The Piper Cub CF-KDE 2499 has two cock
pits in tandem in the fuselage. The front cockpit
has the instruments and the plaintiff flew from
the front cockpit. Patrick was in the rear cock
pit. There is a control column in both cockpits
which are removable. The preponderance of
evidence convinces me that the stick was not
removed from the rear cockpit where Patrick
sat. However, I am convinced that the plain
tiff's failure to remove the stick from the rear
cockpit did not in any way contribute to the
accident which followed.
Patrick had flown with his father many times.
He had been warned repeatedly not to touch the
stick in flight. He is an intelligent boy and he
was well aware of the danger consequent upon
his doing so. I am convinced that Patrick did
not touch the stick and most particularly so
when impact was imminent. Neither do I think
that the stick in the rear cockpit became fouled.
There was a light west wind about 15 miles
per hour. Webster Lake runs north and south. I
mean by that that it is longer in that direction
and narrower from east to west. There are low
mountains or rather hills on the east and west
sides of the lake. To the south there is a low
lying swampy area and to the north the land is
low. In making his landing on Webster Lake,
the plaintiff made his approach from the east
over the row of hills. It was his aim to set down
close to the camp site on the west side of the
lake where a log dock had been constructed.
He was coming in too high so he put the
aircraft into a side slip. The aircraft shuddered
and buffeted. The plaintiff straightened the air
craft out and landed. On landing he made a
visual inspection of the aircraft. He noticed
nothing unusual and attributed the incident to
the removal of the gap strips.
After checking the camp site, which took
about 15 minutes, the plaintiff and Patrick
returned to the aircraft to continue their flight.
The plaintiff taxied over to the east side of
the lake to take off across the lake to the west
into the wind. He testified that he taxied into a
bay close to the shore to begin his take off run.
He raised the water rudder, took his feet from
the rudder to permit the aircraft to weathercock
into the wind.
He then applied full power. On becoming
airborne he levelled the nose to pick up air
speed to 70 miles per hour then began his climb
out at an air speed of 55 miles per hour.
When he got over the western shore of the
lake he was headed directly for the highest
point in the range of hills parallel to the western
shore which rises to about 250 feet above the
water surface. It was a flat topped peak.
The plaintiff testified that he was certain that
he was going to clear the hill but, for a greater
margin of safety, he decided to turn to the right
and fly up a valley that was there.
He levelled the nose and banked to the right.
His air speed was 55 miles per hour. Then he
attempted to level the wings but he could not
get the stick back to the left. He took spin
recovery action. He had estimated his angle of
bank between 20 to 30 degrees. He grabbed a
strut with his left hand to get more leverage but
he could not get the stick back. The right wing
went down, the nose dropped, the throttle was
open and the aircraft was gathering great speed.
The plaintiff noticed that the air speed needle
had passed 122 miles per hour. The aircraft was
going to the right, and was over the water. The
right wing was away down, the nose was down.
The stick was still over to the right. He released
the left rudder and the plane started to level
out. The plaintiff thought that he might be able
to make the swampy ground to the south but he
could not control the aircraft. He passed over a
rocky point of land by the camp site, then over
the water and then the aircraft crashed into the
water, the right wing leading. In coming down,
the aircraft was at a 90 degree angle. Perhaps
when the right wing struck the water it was at
an angle greater than 90 degrees.
The aircraft went over and began to sink. It
was kept afloat, upside down by the floats.
Patrick was screaming. He had become
snagged on some obstruction. His father suc
ceeded in releasing him. Patrick got on the
fuselage and tried to break a hole through it
with his fist in an attempt to release his father.
The plaintiff was pulled down below the
water level but after struggling got out to the
surface.
The plaintiff then assessed their predicament.
Happily Patrick was not injured. However, he
did not think he could swim to the shore. They
took their boots off. Patrick swam as far as he
could unassisted and then with his father's help
they made it to shore. They went to the camp
site. There was a stove there. They made them
selves as comfortable as possible to await their
rescue.
From the plaintiff's description of the attitude
of the aircraft and its track, I believe that the
aircraft did not go into a spin but rather that it
went into a spiral dive.
The recovery from a spin, which the plaintiff
applied, is full opposite rudder to stop the rota
tion of the aircraft followed by an easing back
on the stick to bring the aircraft out of the dive.
The use of the ailerons is not essential to recov
ery from a spin.
It is contrary in a spiral. The turn is made by
banking the wings by use of the ailerons which
is what the plaintiff did. As the angle of bank
becomes steeper the vertical lift decreases and
the nose drops. To recover, it is essential to get
the wings back to a level position. This is done
by the ailerons. If the wings are not returned to
level, the exertion of forces build up until the
spiral becomes tighter with a resultant spiral
dive. The build up is gradual which corresponds
to the plaintiff's description and that description
is not consistent with a stall followed by a spin
which follows suddenly from the stall in that
the upper wing flips over and the aircraft goes
into a rotating dive. Therefore, aileron control is
essential to recovery from a spiral. The plaintiff
testified that he was unable to return the stick
from the right to left.
When the plaintiff failed to return, the Pro
vincial Police were notified. A search was
begun on August 18, 1970 in an aircraft owned
by the Ontario Department of Lands and For
ests piloted by Edward J. Weisflock and accom
panied by a member of the Ontario Provincial
Police. Mr. Weisflock has been flying for
twenty-six years and has logged over 7,000
hours. He is familiar with the area and has
made over 50 landings on Webster Lake quite
recently. He flew to the plaintiff's destination
but also decided to take a look at Webster
Lake. There he observed an object on the water
which he identified as an aircraft upside down.
He looked for survivors and saw two persons
on the shore waving. He landed and took the
plaintiff and Patrick on board. He flew them to
South Porcupine where an ambulance was wait
ing to take the plaintiff and Patrick to hospital.
The plaintiff was well composed and talked
about his experience. As is the custom with
pilots, the plaintiff was anxious to explain to
another pilot what had happened. This took
place on the dock at South Porcupine.
Mr. Weisflock testified that the plaintiff told
him that he had taxied to about the centre of the
lake, turned the aircraft into the wind and took
off. He said that the plaintiff told him that he
was trying to gain altitude to clear the trees on
the west shore of the lake and he quoted the
plaintiff's words as being "I didn't think I was
going to make it". Mr. Weisflock then testified
that the plaintiff told him he made a "quick"
turn to the right to get back to the lake and as
he did he lost control and crashed into the lake.
Mr. Weisflock expressed the opinion from his
experience of Webster Lake that it would be
better not to take off with the highest obstacle
in the direct flight path but rather that an
experienced pilot on becoming airborne and on
getting to 100 feet would make a slow turn
either to the right or left keeping over the
surface of the lake to gain further altitude to get
out of the lake and over the shore line
obstacles.
On behalf of the plaintiff, it is contended that
the servants of the Crown were negligent within
the meaning of section 3(1)(a) and section 4(2)
of the Crown Liability Act by which it is pro
vided that the Crown is liable in tort for torts
committed by its servants in the course of their
employment as a private person would be liable.
However, no action in tort will lie against the
Crown unless the act or omission of the servant
would give rise to a cause of action against the
servant. Therefore liability imposed upon the
Crown is vicarious.
As I understand the submission of the plain
tiff, it is that the servant of the Crown required
the plaintiff to remove the aileron gap strips
from his aircraft as a condition precedent to the
renewal of his certificate of airworthiness on
the assumption that the aileron gap strips were
a modification which had not been approved
whereas they were an original installation by
the manufacturer and which had received a type
approval which the servants of the Crown ought
to have known. Assuming that this negligence
existed, it is then the contention of the plaintiff
that the removal of the aileron gap strips was
the cause of the accident from which damage to
the two plaintiffs resulted.
On the other hand, the submission by the
Crown was that the servant of the Crown was
not negligent. Item 22 of the letter (Exhibit P-2)
cannot be interpreted that the aileron gap strips
were required to be removed unconditionally.
The letter stated that the servants of the Crown
were "unable to find evidence to indicate
approval for aileron gap strips". It is contended
that it was not negligence on the part of a
servant of the Crown in advising the plaintiff
that there was no evidence of approval. The
next sentence of the letter shifts the responsibil
ity of establishing that the installation of the gap
strips had been approved to the plaintiff. It
reads "If no approval has been obtained the
material will have to be removed pending
approval for installation." There is no indication
that the plaintiff must fly the aircraft without
gap strips. It does not state that the presence or
absence of gap strips is a condition precedent to
a certificate of airworthiness, but rather that if
no approval has been obtained, the material
must come off. It is for the plaintiff to satisfy
the Department that the installation of gap
strips was approved.
The Crown admits that certain models of
Piper Cubs were equipped with gap strips and
type approval had been given to those models
but it is submitted that there was no evidence to
indicate that there were gap strips on the plain
tiff's aircraft.
Accordingly, the Crown submits that there
was no negligence but alternatively if there was,
that it was the plaintiff's negligent flying that
caused the accident.
In my view, the first question to be deter
mined is whether there was a duty on the offi
cers of the Crown to ascertain if the installation
of gap strips was the manufacturer's original
design of the plaintiff's particular model or
whether it was the obligation of the plaintiff to
satisfy the Department to that effect.
The servant did not know, but the question is
was there a duty on him to find out. If there
was, and he obviously did not discharge that
duty, then there was negligence on the part of
the Crown's servant. If no such duty existed
then there was no negligence.
In short, it is my opinion that the question of
negligence in this aspect turns on whether it
was the responsibility of the Crown's servant to
investigate and inform himself or whether the
responsibility lay upon the plaintiff to satisfy
the Department.
It was a very simple matter to find out. All
that was required was a visit, telephone call,
telegram or letter of inquiry to the manufactur
er. The plaintiff, after the accident, visited the
manufacturer's plant and was informed that his
aircraft was manufactured with aileron gap
strips as part of the design.
Under the Aeronautics Act (R.S.C. 1970, c.
A-3) it is the duty of the Minister to supervise
all matters connected with aeronautics. Under
section 6(1)(d) the Minister may make regula
tions with respect to the conditions under which
aircraft may be used and operated. He has done
so.
In section 101(15a) of the Air Regulations
"airworthy" is defined as meaning "in respect
of an aircraft or aircraft part, in a fit and safe
state for flight and in conformity with the stand
ards of airworthiness established by the Minis
ter in respect of that aircraft or aircraft part;"
Section 211(1) reads:
211. (1) The Minister may establish standards of airwor-
thiness for aircraft, including requirements in respect of the
design, construction, weight, instruments and equipment of
the aircraft and any other matter relating to the safety of
such aircraft.
By subsection (2), the Minister, upon being
satisfied that an aircraft conforms to the stand
ards established in respect of that aircraft may
issue a certificate of airworthiness.
Under subsection (9):
(9) The Minister may cause an Engineering and Inspec
tion Manual to be published and maintained which shall
prescribe the procedures for the determination of airworthi-
ness of aircraft including the frequency of inspections,
responsibilities and methods of servicing, maintenance,
overhaul, repair and modification and such other matters
with regard to the airworthiness of aircraft as the Minister
may direct.
By section 214, the Minister may issue an
aircraft type approval in respect of any aircraft
that, in his opinion, conforms to the standards
of airworthiness established.
In the Airworthiness Certification Order it is
provided that a certificate of airworthiness
issued in respect of an aircraft shall not be in
force unless that aircraft has been maintained,
repaired, modified and overhauled in compli
ance with the Engineering and Inspection
Manual and has been certified as airworthy in
the Aircraft Journey Log by a qualified aircraft
maintenance engineer. Further, if a certificate
has been suspended, it shall not be renewed
until it has been certified in accordance with the
Engineering and Inspection Manual.
In the Engineering and Inspection Manual
"minor repairs" are defined as elementary
repairs made in accordance with approved air
craft practice but which do not affect the basic
airworthiness such as structural strength, per
formance or operation and do not require sub
stantiation by approved drawings. These minor
repairs may be signed by an aircraft mainte
nance engineer certified in Category "A".
An example of a minor repair is given as
fabric work, that is repairs to damaged fabric,
doping and finishing.
Major repairs are repairs other than minor
repairs and may. be certified only by aircraft
maintenance engineers holding valid Category
"B" or "D" licences.
Any such repairs must not be certified by the
aircraft maintenance engineer unless the work
was done in a method prescribed in the manu
facturer's repair manual, instructions in the
manufacturer's service bulletins or in authorita
tive manuals.
It is obvious from the foregoing that a repair
or modification can be effected only by an
aircraft maintenance engineer. There is no ques
tion that the repairs effected by Mr. Wolfe and
Mr. McDuff, the prior owners of the aircraft, in
replacing the aileron gap strips in the circum
stances outlined were within the definition of
minor repairs and neither of the prior owners
were licensed aircraft maintenance engineers.
Further, there was no notation of the replace
ment of aileron gap strips entered in the log
books of the aircraft. The airworthiness inspec
tor, who was the author of the letter of Novem-
ber 4, 1969, had possession of and had exam
ined the log books.
It is equally obvious from the foregoing that
the Minister is satisfied that a particular aircraft
is airworthy when a licensed aircraft mainte
nance engineer so certifies. It is on the basis of
the certification of the engineer that the certifi
cate of airworthiness is issued after repair,
modification or inspection. His licence is based
on his qualification to do such work and the
Department assumes that he has done it
correctly.
The maintenance engineer has a two-fold
responsibility, one to satisfy his customer and
the second to satisfy the Department that any
work done by him has been done in accordance
with acceptable standards and that any changes
in design, installation or modification has been
in accordance with approved drawings and
specifications. That is his responsibility to the
Department and when he so certifies to the
Department, the Department accepts his certifi
cation that the aircraft is airworthy on the basis
that he has done his job correctly and issues its
certificate accordingly.
The aircraft maintenance engineer is licensed
by the Department but he is employed by the
owner of the aircraft.
The replacement of the aileron gap strips on
the plaintiff's aircraft was not done by a li
censed aircraft maintenance engineer. There
were no entries in the log book signed by such
an engineer. These aileron gap strips were
placed on the aircraft by the prior owner, Ross
McDuff and it is my expectation that these
were the gap strips that the inspector saw on
November 3, 1969. There is no doubt that they
were a home-made job and that they had the
appearance of a home-made job. Obviously,
there was no approval of this replacement and
the airworthiness inspector was justified in
coining to a conclusion to that effect and he
was equally justified in insisting upon the plain
tiff producing evidence of approval which
would be normally evidenced by an entry in the
log book in which no such entry appeared.
Because the aileron gap strips had the appear
ance of a home-made job, the inspector was
justified in concluding that these particular ail
eron gap strips were not installed at the factory.
It is conceded that the Piper Cub J3 was
given a type approval and it is also conceded
that some of the aircraft designated as model J3
were equipped with a friese wing assembly and
others also designated as model J3 were
equipped with a non-friese wing assembly.
However, because approval has been given to
an aircraft type the Department does not have
particulars of the minute details of the design. If
occasion should arise, the Department has
facilities to obtain that information.
This brings me back to the question of wheth
er the Department was under a duty to obtain
those particulars of the design of this particular
aircraft in the present instance.
The initial sentence of item 22 in the letter of
November 4, 1969 (Exhibit P-2) reads:
22. We are unable to find evidence to indicate approval
for aileron gap strips....
This letter was written with respect to the
plaintiff's particular aircraft. The word "we"
means the Department of Transport. The sen
tence must mean that there was no evidence
available to them in their records to indicate
approval for aileron gap strips.
That being so it means that, although approv
al of the type had been given, the Department
did not have the particulars respecting the
installation of aileron gap strips on the type.
This interpretation is confirmed by the use of
the words "for aileron gap strips". The word
"aileron" in the phrase is not preceded by the
definite article "the". Therefore, the reference
must be to the use of aileron gap strips general
ly for use on model J3. The language of the
sentence uses the word "approval" which raises
the question: approval by whom? That approval
must mean approval by the United States Fed-
eral Aviation Administration of the type. That
approval is considered to be equivalent to a
type approval by the Department of Transport.
Because the type was approved by the compa
rable United States authority it follows that the
type has the approval of the Department of
Transport. An aircraft within the type which
has received type approval is eligible for a
Canadian certificate of airworthiness. But that
does not mean that a particular aircraft within
that approved type will qualify for a certificate
of airworthiness. It must first be established
that the aircraft conforms to the approved type
design and second that it is in an airworthy
condition.
The whole tenor of the Aeronautics Act and
the Air Regulations and Air Navigation Order
promulgated thereunder is that the Minister
must be satisfied that an aircraft is airworthy
before he will issue his certificate to that effect.
The owner of the aircraft is obliged to apply for
that certificate and it is his responsibility to
satisfy the Minister to that effect.
This is what item 22 of the letter of Novem-
ber 4, 1969 invited the plaintiff to do. The
inspector was in doubt about the use of aileron
gap strips on this aircraft generally and the
authority for the use of the home-made gap
strips particularly. The plaintiff was invited to
remove that doubt or in short to satisfy the
Minister that the aircraft was airworthy with
gap strips installed. Until that was done by the
plaintiff, the certificate of airworthiness was
suspended.
For the foregoing reasons I have concluded
that there was no duty upon the servants of the
Crown to ascertain if the installation of gap
strips on the plaintiff's aircraft was part of the
manufacturer's original design but rather that
the responsibility to do so lay on the plaintiff.
However, if I am in error and that duty lay
upon the servants of the Crown, then the
breach of that duty was not the cause of the
accident. The plaintiff was not required to fly
the aircraft without gap strips. He was only
required to satisfy the Minister that gap strips
should be installed. This the plaintiff did not do.
He accepted the aircraft from Mr. Denomme
without gap strips on his assurance that the
aircraft was airworthy and similarly the Depart
ment issued a certificate of airworthiness upon
the certification of airworthiness by Denomme.
The removal of the aileron gap strips did not
render the aircraft unairworthy but that removal
did drastically alter the flying characteristics of
the aircraft.
For the foregoing reasons I have concluded
that the plaintiffs are not entitled to the relief
sought against Her Majesty and Her Majesty is
entitled to her costs of the action to be taxed.
In view of the conclusion that I have reached,
it is not necessary for me to consider the alter
native defence that the negligence of the plain
tiff caused the accident, nor the quantum of
damages.
If it were obligatory upon me to do so, I
would apportion the negligence between plain
tiff and the defendant on the basis of 30% and
70% on the assumption that the servants of the
Crown were negligent in not ascertaining that
the installation of aileron gap strips on the
plaintiff's aircraft was in accordance with the
manufacturer's design and that a certificate of
airworthiness would be withheld pending
removal of the gap strips. I would do so
because it is my view the plaintiff's faulty air-
manship contributed to the accident to the
extent of 30%. He was aware of the changed
flying characteristics of the aircraft in its lack
of ready response to aileron control. Therefore,
he should have exercised greater caution. It is
my opinion that in view of the lack of sensitivi
ty in aileron control he made too quick a turn
and too steep a bank in altering course but that
the removal of the aileron gap strips impeded
recovery from that error.
I am happy that Patrick suffered no perma
nent physical injury from the mishap. However,
as a boy in his tender formative years he was
subjected to a traumatic experience. He was
faced with the prospect of death, first when it
was evident that a crash was inevitable and then
the possibility of death by drowning when he
became caught in the aircraft and after he was
freed in the long swim to shore. Further, he
witnessed his father's struggle for survival.
Therefore he was shaken physically, he suf
fered shock and fright. I would assess Patrick's
damage at $400.
The adult plaintiff in addition to shock and
fright suffered physical injury. His nose and
cheek bones were broken. He suffered lacera
tions. While there were no permanent disabili
ties resulting, there is a disfiguration on his left
cheek. He spent a day awaiting rescue without
relief from the pain of his injuries and he was
confined to hospital for five days. Therefore I
would assess his general damages at $4,000.
With respect to the special damages claimed,
I would allow $414 for out of pocket expenses
resulting from the accident. I would allow the
cost of the aircraft less an amount for salvage
able parts plus an amount for appreciation in
value. The cost of the aircraft was $3,990, the
salvage value was $700 including skis which
amounts to $3,290. It was established that
despite the age of the aircraft it had appreciated
in value. I would therefore add $500 to arrive at
$3,790 as the market value of the aircraft. The
loss of the aircraft did result in loss of custom.
Two parties cancelled their reservations. While
this item claimed has not been proven with the
conclusive certainty that is desirable giving the
best consideration possible, I would allow an
amount of $196 for loss of custom making a
total amount of $4,400 for special damages.
In view of the apportionment of negligence,
which I have concluded is applicable, that
apportionment would result in the quantum of
damages being reduced so that the infant plain
tiff, Patrick, would be entitled to an amount of
$280 and the adult plaintiff to an amount of
$5,880 were it not for the conclusion that I
have reached, for the reasons indicated above,
that the plaintiffs are entitled to none of the
relief claimed in the prayer therefor in this
action which is accordingly dismissed with
costs to Her Majesty.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.